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January 7, 2008

Georgia Supreme Court considers banishment as punishment

Thanks to this post headlined "Virtual Banishment" from Of Counsel, I saw this interesting AP article entitled "Ga. court to hear challenge to state's banishment policy." Here are some excerpts:

Georgia's judges are barred from banishing criminals from the state, but some use a legal maneuver to get around the ban: Restricting the offenders from all but one of the state's 159 counties. That often means confining selected offenders to remote counties in rural Georgia, or hard-to-reach spots near the Okefenokee Swamp....

[This issue arises] Monday in Georgia Supreme Court as justices hear the case of Gregory Mac Terry, who was banished from every county but one after pleading guilty to assault and stalking charges.... Terry was sentenced to 20 years in prison and 10 more years on probation — with the condition that he be banned from all Georgia's counties except Toombs County in southeast Georgia.

The banishment effectively blocked his release from prison in June 2001 when he was told he had a chance to be paroled if he completed a work release program. But he couldn't start the program because he was banned from living and working in Fulton County, a development that set his parole date back until June 2009, according to his lawsuit....

Terry's attorney, McNeill Stokes, said the [banishment] practice is an "unconstitutional outrage" that's aimed at getting his client — who has no family or job in Toombs County — to flee the state. "It's a throwback to the dark ages," said Stokes. "The whole point behind this is zealous prosecutors wanting to get rid of problems in their counties."

Comments

Isn't a condition of parole/probation that you remain WITHIN one county analogous to the condition that you remain OUTSIDE of all the other counties?

Of course, the county the defendant is limited to should have some relation to the location of the court's jurisdiction, where the defendant lives, where the defendant's family is, etc. If they are requiring him to remain in a county outside the court's jursidiction because it is far away from civilization, inconvenient, and a horrible place to live, then that's surely a violation of due process and equal protection, and it seems unusual, if not cruel.

This reminds me of the "common enemy" doctrine with respect to flooding.

Posted by: federalist | Jan 7, 2008 5:42:26 PM

I know a stalking victim who moved in my community because she had to leave her former state of residence and create a new identity because her stalker was released on parole. As far as her former friends were concerned it was a virtual homicide. No doubt the judge is trying to protect someone in a similar predicament. From a civil liberties point of view this is a mess.

Posted by: John Neff | Jan 7, 2008 6:34:33 PM

I am not an expert on GA law, but the “jurisdiction” argument might somewhat complex and differ by states.

In some states, the trial court is has statewide jurisdiction, and individual counties are a matter of venue. In other states, individual trial courts have geographic jurisdiction. And, amongst these states, if there are two levels of trial court, sometimes one court is “Statewide” and the other has jurisdiction over certain geographic areas.

In still other states, post-incarceration supervision is purely an executive function, and challenges to the supervision are brought in a court determined only by its venue.

Bruce: Yes -- in Texas at least it is almost universal that a probationer or parole be restricted to one county (usually, but not always the county where the conviction happened). This has led, in the past, to a few cases where the defendant from out-of-state (or out-of-country) who committed the offense while visiting is forced into contemplating an almost impossible local probation (this happened to one of my clients from overseas). An un-yielding judge who refuses to allow a foreign probation can basically force a defendant like that to flee. This Georgia case doesn't surprise me at all.

Posted by: dweedle | Jan 8, 2008 1:12:46 PM

it is merely a reflection of the point your finger at the bad guy and lock 'em up mindset so viciously perpetuated by presidential candidates like mr huckabee supporting 'isolating' patients with a medical condition ... i guess that's a prettier word than SEGREGATION or Seperate but equesl but the supreme court had a few words about that concept.

Posted by: Alan | Jan 10, 2008 8:44:24 AM

I am going through this right now. My boyfriend was sentenced to 5 years plus banishment. He is allowed only in Fulton County. He has been up for parole for over a year. The only family he has is me and a brother. His brother lives in southeast Ga and our children and I live in southwest Ga. We have no way to get him a Fulton County address. His probation officer refuses to request his banishment be lifted or altered until he maxes out in 10 months.

Posted by: Laura | Apr 27, 2009 1:22:10 PM

My husband was arrested on a Misdemeanor fighting in public; affray. The municpal judge on Tybee Island put a condition on his bond; banished from tybee island.
We own a home, he has jobs on tybee and we have kids.

Because banishment is a form of punishment/sentencing. Can a municipal judge banish a person prior to being tried?

The Tybee municipal code does not discuss banishment.

Please advise.

Posted by: jacqueline brown | May 25, 2010 8:14:39 PM

Jacqueline, the Judge can't put a condition on bond like that. Because banishment is considered to be a sentence, the offender must have made a plea bargian instead of taking it to trial. That's the only way a judge can make banishment a sentence before trial.

Now for everyone else, i am from Georgia and i've been all over the state. It's not a bad place to live and is very nice. The whole purpose in the 158 county banishment is to take an offender out of the area they are in and get them to go to an area that is less populated and hard to committ crimes. It's not unconstitutional, and it is not a violation of due process because the offender had their due process and was found guilty of their crime and banishment was ordered as their sentence.

Posted by: whatsupyall55 | Oct 16, 2011 10:49:40 PM

The problem with banishment is that there seems to be no way to track whether a person has been banished or not. My ex was banished from 2 counties. He was arrested in one of the counties he was banished from and was released on bond the following day. Officers were called to my house when he showed up and again he was release with no way of them knowing he had been banished. Officers stopped him for a traffic violation and released him with a warning unrelated to having been banished.

For this reason I find banishment an affront to justice.

Posted by: Angé, student | Mar 1, 2014 9:20:08 PM

once off probation can you still be banished from the city your home is in? and still not be banished from the county .

Posted by: judy | Sep 14, 2014 2:53:41 PM

I was banished for 20 years and tha county I was banished from is trying to bring me back to court on a charge that was takin out for me 2 months before my banishment sentence. It has been two years since my banishment. Can they do that? Is that not goin against court orders to bring me back to tha county? Does anybody know anything about this?

Posted by: Brian | Jun 17, 2016 8:02:22 PM

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